LRBs0401/2
ZDW:skw
2021 - 2022 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 849
February 18, 2022 - Offered by Representative Wittke.
AB849-ASA1,1,4
1An Act to renumber 30.122;
to amend 30.122 (title); and
to create 30.01 (1h),
230.122 (2), 30.122 (3), 30.2039 and 885.335 of the statutes;
relating to: use of
3fill in commercial waterways and establishing shorelines of Great Lakes
4waters.
Analysis by the Legislative Reference Bureau
This bill provides for the lawful public or private use of land that has been above
the ordinary high water mark of a commercial waterway or a Great Lakes water
since December 9, 1977. Under current law, all permanent alterations, deposits, or
structures, other than boathouses, that affect navigable waters are presumed in
conformity with the law if they were constructed before December 9, 1977, and did
not require a permit at the time of construction.
Historic fill in commercial waterways
The bill applies, in part, to fill placed prior to 1977 that created land above the
ordinary high water mark of a commercial waterway, which is a specified list of
rivers. If the fill is unauthorized fill for which the Department of Natural Resources
has not initiated an enforcement action or is within an authorized bulkhead line and
not specifically restricted by a submerged land lease, the owner of the fill may use
the fill for any purpose.
Establishing the shorelines of Great Lakes waters
The bill applies, in part, to property that 1) includes land that may have been
part of the submerged bed of a Great Lakes water at the time of statehood; 2) includes
portions of land that are upland, which is defined to mean land that has been above
the ordinary high water mark since December 9, 1977; 3) is within a municipality;
and 4) is not subject to a lake bed grant or a submerged land lease and is not landward
of the statutorily established shoreline in the city of Milwaukee.
The record title holder of applicable land may submit a proposed shoreline to
to the municipality in which the land is located. The municipality must approve the
proposed shoreline if the municipality determines the proposed shoreline is in the
public interest and the proposed use will promote the interests of the public and if
the proposed use will provide public access or use. If a municipality approves a
proposed shoreline, the municipality must submit the approval to DNR for review.
Following a public notice and comment period, DNR must adopt the shoreline
approved by the municipality unless DNR determines that a portion of the area
landward of the shoreline is not upland or there is not substantial evidence that the
shoreline as proposed is in the public interest. A determination by DNR establishes
the shoreline for purposes of determining the boundary of title between land held in
trust by the state and land held in fee title ownership.
The bill also prohibits the commencement of any action affecting the possession
or title of any real estate based on an assertion that the property includes portions
of land that may have at one time been submerged beneath a Great Lakes water or
a commercial waterway, if the portions of land are upland and not subject to a lake
bed grant or a submerged land lease or otherwise limited by a prior approval issued
by the state or a local government.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB849-ASA1,1
1Section
1. 30.01 (1h) of the statutes is created to read:
AB849-ASA1,2,32
30.01
(1h) “Commercial waterway” includes the portions of all of the following
3rivers that are within the Great Lakes basin and within incorporated areas:
AB849-ASA1,2,44
(a) Ahnapee River.
AB849-ASA1,2,55
(b) East River in Brown County.
AB849-ASA1,2,76
(c) Fox River, not including Lake Winnebago, Lake Butte des Morts, Lake
7Winneconne, or Lake Poygan.
AB849-ASA1,2,88
(d) Kewaunee River.
AB849-ASA1,3,1
1(e) Kinnickinnic River, Menomonee River, and Milwaukee River.
AB849-ASA1,3,22
(f) Manitowoc River.
AB849-ASA1,3,33
(g) Menominee River.
AB849-ASA1,3,44
(h) Root River.
AB849-ASA1,3,55
(i) Sheboygan River.
AB849-ASA1,3,66
(j) St. Louis River.
AB849-ASA1,3,77
(k) West Twin River and East Twin River.
AB849-ASA1,2
8Section
2. 30.122 (title) of the statutes is amended to read:
AB849-ASA1,3,9
930.122 (title)
Unauthorized structures and fill.
AB849-ASA1,3
10Section
3. 30.122 of the statutes is renumbered 30.122 (1).
AB849-ASA1,4
11Section
4. 30.122 (2) of the statutes is created to read:
AB849-ASA1,3,1612
30.122
(2) A fill or deposit placed in a commercial waterway before the date
13provided in sub. (1) that created land at an elevation above the current ordinary high
14water mark and that has remained above the current ordinary high water mark since
15the date provided in sub. (1) may be used by the owner of the fill or deposit for any
16public or private purpose without restrictions imposed if any of the following apply:
AB849-ASA1,3,1917
(a) The fill is unauthorized and the department has not initiated an
18enforcement action relating to the fill prior to effective date of this paragraph ....
19[LRB inserts date].
AB849-ASA1,3,2220
(b) The fill is within an authorized bulkhead line established as provided under
21s. 30.11 and use of the filled area is not specifically restricted by the terms included
22in a submerged land lease under s. 24.39 (4).
AB849-ASA1,5
23Section
5. 30.122 (3) of the statutes is created to read:
AB849-ASA1,3,2524
30.122
(3) Nothing in this section abridges the riparian rights of riparian
25owners.
AB849-ASA1,6
1Section
6. 30.2039 of the statutes is created to read:
AB849-ASA1,4,3
230.2039 Great Lakes shorelines established. (1) Definitions. In this
3section:
AB849-ASA1,4,54
(a) “Great Lakes water” means Lake Superior, Lake Michigan, Green Bay, or
5Sturgeon Bay.
AB849-ASA1,4,66
(b) “Municipality” means a city or village.
AB849-ASA1,4,87
(c) “Record title holder” means a person with a claim of ownership of property
8based on a recorded conveyance of an ownership interest in the property.
AB849-ASA1,4,109
(d) “Shoreline” means the boundary between upland and property waterward
10of upland areas.
AB849-ASA1,4,1311
(e) “Upland” means property that has been at an elevation above the current
12ordinary high water mark since the date provided in s. 30.122 (1) other than for
13temporary maintenance activities or because of accretion or reliction.
AB849-ASA1,4,15
14(2) Scope. This section applies to properties or portions of properties to which
15all of the following apply:
AB849-ASA1,4,1716
(a) The property includes portions of land that may have been part of the
17submerged bed of a Great Lakes water at the time of statehood.
AB849-ASA1,4,1818
(b) The property includes portions of land that are upland.
AB849-ASA1,4,1919
(c) The property is within a municipality.
AB849-ASA1,4,2120
(d) The property is not subject to a lake bed grant or a submerged land lease
21and is not landward of the shoreline established under s. 30.2038.
AB849-ASA1,4,25
22(3) Application. (a) A record title holder for property that meets the
23requirements under sub. (2) (a) to (d) may apply to the municipality in which the
24property is located for a determination of the location of the shoreline in accordance
25with this section.
AB849-ASA1,5,1
1(b) The application shall include all of the following information:
AB849-ASA1,5,32
1. The legal description of the property and a survey map showing the proposed
3shoreline.
AB849-ASA1,5,64
2. Photographs, survey data, publicly available global positioning system
5mapping, geographic information system mapping, or other documentation that
6provide evidence that the area landward of the proposed shoreline is upland.